[ Update: The Wall Street Journal has streaming coverage today, Wednesday, also. And the court has added special access to some of this case documents for free.]

My favorite tweet from yesterday -- Samsung lawyer asks the potential jury pool if any of them ever heard of Open Source software, and lots of hands shot up. Hey, dude, this is in Silicon Valley.

They'll all be filing stories, the reporters, at the end of the day or earlier as well, but the tweets are contemporaneous. Where are Wired's Caleb Garling and Rachel King of ZDNET? I miss them from following their tweets in the Oracle v. Google trial. Yes. Even the fashion reports. I guess they only go to San Franscisco trials, and this one is in San Jose. They should be there though, if anyone wants my opinion. Jim Prosser, Google's PR guy, tweets that his dad misses those two also. So there you are. We're right. King says, on this group tweet feed for four of the above listed journalists on the trial that King set up, that she wishes she were there. So that's three of us. Come on, ZDNet, have a heart. Can't you send two? Wired?

If anything big pops up legally, I'll surely tell you all about it right here, and I'll try to explain it to you, too, but it's fun to follow along with the littler, more colorful bits meanwhile. A Samsung lawyer got yelled at today, and I gather he did a little bit of that at the judge. And a juror asked to be excused already, so we're down to 9 jurors, only two of them women. See? Follow along. It's fun.

"Marketplace is full of tablets" that have similar designs. "Everyone is out there with products with that basic form factor," Samsung atty argues. Same for phones....even if take Apple out...

Tit-for-tat..Samsung introducing Apple emails, including one to design guru Jonathan Ive from designer saying phones should be more "sony-like" in early 06.

"Nothing wrong with being inspired by somebody else's design." Apple itself was inspired by Sony in designing the iPhone...The Ok-for-everbody argument from Samsung

It's not just an argument. It's the truth. No creative person works in a vaccuum. That's why Steve Jobs, a far more honest CEO than most,
said [video] that good artists copy and great artists steal. He was quoting Picasso, they say, although some use the word "borrow" instead of "copy", but what is the substantive difference? There is something wrong with a law that forbids good and great artists from doing what they have always done.

So, Apple, what's with patenting a rectangle with rounded corners and then getting huffy about it? And Apple's attorney in his opening argument, according to Dan Levine, said:

McElhinny: Why is Apple making a fed case out of this? “Artists don’t laugh that often when people steal their designs.”

Actually, he's right. Once there are counterclaims, Samsung is the plaintiff for those, and Samsung does have counterclaims. It's like two actions rolled into one. But the judge didn't agree. Still, that attention to detail, to the little things that might influence a jury -- well, that's the kind of lawyer I'd want representing me.

[ Update 2:Here's what the argument was about, and more fireworks are now inevitable.]

What's Trade Dress?

Actually, trade dress is another issue in this litigation. There is a section of the law, IP law, just about trade dress. It's the Lanham Act that covers it, if it acts like a trademark, and you can read all about it on Cornell's LLI:

Definition

The design and shape of the materials in which a product is packaged. Product configuration, the design and shape of the product itself, may also be considered a form of trade dress.

The Lanham Act protects trade dress if it serves the same source-identifying function as a trademark. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are protected without registration under 15 U.S.C. § 1125(a).

The purpose of the law is to make sure if you buy a Gucci bag or go to get a Big Mac, you find the right product you are looking for, not some Brand X look alike. There's a famous case, Two Pesos, Inc. v. Taco Cabana, 505 U.S. 763 (1992), that went all the way to the US Supreme Court, because it was the first time a restaurant had made this kind of trade dress argument and there was a fine legal point raised on appeal on whether trade dress had to have secondary meaning. The answer was no, it just had to be inherently distinctive. It was about a Mexican restaurant, which had certain decorative features to its chain, and somebody else set up a restaurant that looks about the same, all the decorative features, and they had to cut it out, because it could confuse customers. Here's a bit of what the Supreme Court said:

Respondent Taco Cabana, Inc., operates a chain of fastfood restaurants in Texas. The restaurants serve Mexican food. The first Taco Cabana restaurant was opened in San Antonio in September 1978, and five more restaurants had been opened in San Antonio by 1985. Taco Cabana describes its Mexican trade dress as

"a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme." 932 F. 2d 1113, 1117 (CA5 1991).

In December 1985, a Two Pesos, Inc., restaurant was opened in Houston. Two Pesos adopted a motif very similar to the foregoing description of Taco Cabana's trade dress. Two Pesos restaurants expanded rapidly in Houston and other markets, but did not enter San Antonio. In 1986, Taco Cabana entered the Houston and Austin markets and expanded into other Texas cities, including Dallas and El Paso where Two Pesos was also doing business.

In 1987, Taco Cabana sued Two Pesos in the United States District Court for the Southern District of Texas for trade dress infringement under § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a) (1982 ed.),[2] and for theft of trade secrets 766*766 under Texas common law. The case was tried to a jury, which was instructed to return its verdict in the form of answers to five questions propounded by the trial judge. The jury's answers were: Taco Cabana has a trade dress; taken as a whole, the trade dress is nonfunctional; the trade dress is inherently distinctive;[3] the trade dress has not acquired a secondary meaning[4] in the Texas market; and the alleged infringement creates a likelihood of confusion on the part of ordinary customers as to the source or association of the restaurant's goods or services. Because, as the jury was told, Taco Cabana's trade dress was protected if it either was inherently distinctive or had acquired a secondary meaning, judgment was entered awarding damages to Taco Cabana. In the course of calculating damages, the trial court held that Two Pesos had intentionally and deliberately infringed Taco Cabana's trade dress.[5]

I think you can see the reason they ruled as they did. If you are known by your decorative features in your restaurants, and someone copies you, you can lose customers who go to the other place, thinking it's yours. And if the look-alike restaurant food isn't as good or it makes you sick, you might sue the real restaurant chain or just decide you'll never eat there again, so it's your reputation on the line on top of losing customers. Coke's bottle shape is another example of trade dress.

And that's why, as Williams reports, the Samsung attorney is telling the jury that people know when they are buying a Samsung tablet or phone that it isn't an Apple product. They are not confused, even if the tablet is a rectangle with rounded corners. People are not that easily confused. Buying an Apple product, after all, usually involves either buying from Apple online, going to an Apple store, or from a designated Apple section in a store. If folks are buying Samsung phones or tablets thinking they are Apple iPhones or iPads, then Samsung has a problem. That is what is at issue.

[ Update 3:Here's [PDF] a June 30, 2012 court ruling by Judge Lucy Koh denying Samsung's motion for summary judgment on Apple's trade dress claim, available from the court's free collection of selected filings. It discusses the trade dress claims, and it sets forth the law in that district on trade dress, beginning on page 3 of the PDF. It discusses only one Samsung argument, that the trade dress Apple is claiming is functional and thus not protectable, but the judge ruled that is a fact question, meaning it has to be decided by the jury. Meanwhile we can learn a lot about trade dress law. Just a snip of it:

II. TRADE DRESS

“It is well established that trade dress can be protected under federal law. The design or packaging of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source.” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 28 (2001). To succeed on its trade dress claims, Apple must satisfy three elements: nonfunctionality, distinctiveness, and likelihood of confusion. See Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1005 (9th Cir. 1998). On its motion for summary judgment, Samsung only argues that Apple’s product designs are unprotectable because they are functional. Functionality is a factual question. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1258 (9th Cir. 2001) (citation omitted)....

Trade dress protection “must subsist with the recognition that in many instances there is no prohibition against copying goods and products.” TrafFix Devices, Inc., 532 U.S. at 29. Therefore, “[t]he functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm’s reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature.” Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 164 (1995).

The Supreme Court has recognized two types of functionality: a “traditional rule” and a second rule addressing “aesthetic functionality.” TrafFix, 532 U.S. at 32-33. First, if a product feature is “essential to the use or purpose of the article or if it affects the cost or quality of the article,” it is functional and cannot be protected by trade dress. Id. at 32. Second, in cases where the first test is not satisfied, the question becomes whether trademark protection would place competitors at a “significant non-reputation-related disadvantage.” Id. (internal quotation marks omitted); see also Au-Tomotive Gold, Inc. v. Volkswagen of Am., Inc., 457 F.3d 1062, 1072 (9th Cir. 2006). The Court will address each of the types of functionality recognized by the Supreme Court in turn.

I think you can see just from that one quotation that trade dress protection is thin, and that Apple has some work to prevail, and you can also understand why Samsung is saying to the jury that it's not a crime to be inspired by others' designs. And that's true up to a point, and that is what the jury will have to figure out -- where is that point in this fact pattern? -End update.]

1520 -
Filed & Entered: 07/31/2012
AMENDED ORDER ON SAMSUNGS OBJECTIONS TO APPLES PROPOSED EXAMINATION EXHIBITS AND MATERIALS FOR SECOND DAY OF TRIAL. Signed by Judge Lucy H. Koh on 7/31/2012. (lhklc2, COURT STAFF) (Filed on 7/31/2012)

See what I mean about neither side being willing to give up even the smallest point? You see if one side files objections, the other files objections to objections. I don't know why it jumps from 1522 to 1526, but eventually we'll find out.

And 1526 is interesting because it lists some of the prior art that Samsung wishes to show the jury. Apple is raising objections, so there's no telling how many Samsung will be able to show, but I see the Compaq TC1000 tablet and the LG Prada phone, as well as the D'889 design patent and the JP'638 patent.

And just so you know what happened yesterday as far as documents filed, here is the list on the docket, but I can't get them all as PDFs now, unless you seriously want them all immediately enough to hit the tip box, but I do have the ones that look most pertinent:

You'll notice that Microsoft has filed a
Supplemental Declaration in Support of its earlier motion to seal. It does not want the public to know the terms of its patent cross license with Samsung, which it stated included coverage for Android, which it calls "highly sensitive confidential information of Microsoft that, if revealed to the public... would substantially harm Microsoft". Well, not if you told the truth. In it, the declarant states:

5. On July 27, 2012, the Court held a hearing at which it stated that "based on the Ninth Circuit's decision in Electronic Arts, pricing, royalty rates, minimum payment terms of licensing agreements will be sealable.... [as well as] the duration of the license." (7/27/12 Hearing Transcripts). The Court also issued a Minute Order and Case Management Order (ECF Doc 1426) giving until Monday July 30, 2012 at 5 pm to file revised motions to seal and/or supplemental declarations.

So that's the latest. This issue is moving forward, and we should hear soon what the judge's decision is. As far as openness is concerned, Judge Koh has already told the parties how she feels, but it's a little less strict when it comes to third parties. Motorola is also asking the court to seal its money terms in its license with Samsung, and
attached to it as Appendix A, you'll find two of Judge Koh's orders denying motions to seal, in which she explains the law in the Ninth Circuit regarding parties sealing documents. There has to be a compelling reason to it, she writes.